The
Ninth U.S. Circuit Court of Appeals agreed yesterday to grant en banc review of
a three-judge panel’s decision restricting the government’s ability to
prosecute those accused of assisting terrorist organizations.

In
a brief order signed by Chief Judge Mary M. Schroeder, the court said a
majority of its unrecused active judges had agreed to review by an 11-judge
panel of last December’s decision in Humanitarian
Law Project v. U.S. Department of Justice, 02-55082.

Judge
Raymond C. Fisher, who was associate attorney general in the Clinton
administration when the law under challenge was first being implemented,
recused himself from the vote, the order noted.

The
three-judge panel, in a 2 to 1 decision, upheld a ruling by U.S. District Judge
Audrey Collins striking down part of the Antiterrorism and Effective Death
Penalty Act of 1996, a law passed largely in reaction to the 1995 bombing of
the Murrah Federal Building in Oklahoma City.

Collins
said a portion of the law making it a crime to “knowingly provide[ ] material
support and resources” to an organization designated as terrorist by the State
Department was unconstitutionally vague to the extent it includes “training”
and “personnel” within the definition of “material support and resources.”

A
three-judge Ninth Circuit panel upheld that portion of the ruling four years
ago, but sent the case back to Collins to reconsider other issues.

‘Material
Support’

In
the December ruling, the panel reaffirmed its view of the “material support”
clause. It also rejected several other constitutional challenges to the law,
but—in what the Justice Department said was a key blow to anti-terrorism
efforts—held that a defendant cannot be convicted under the law without proof
he or she knew the organization had been designated as terrorist or knew of its
terrorist activities.

AEDPA
establishes procedures by which the secretary of state may designate as a
“foreign terrorist organization” any foreign group that “engages in terrorist
activity” that “threatens the security of United
States nationals or the
national security of the United States.”

Organizations
being considered for the designation are not entitled to notice, or to contest
the designation in advance. Once the designation is published in the Federal
Register, it takes effect immediately.

A
designated group may contest the decision within 30 days of publication by
appealing to the U.S. Court of Appeals for the D.C. Circuit. But review is
limited to the administrative record established by the State Department in
support of the decision.

Dire
Consequences

Members
and representatives of designated groups are barred from entering the United
States. Anyone convicted of
providing material support to a foreign terrorist organization faces hundreds
of thousands of dollars in fines and a prison term of up to 15 years, or life
imprisonment if death results.

The
Clinton
administration’s initial review under the act resulted in 30 organizations
being designated as terrorist in October 1997. Supporters of two of those
groups, the Kurdish People’s Party, or PKK, and the Liberation Tigers of Tamil
Eelam challenged features of the law they claimed deprive them of the right to
support humanitarian and diplomatic efforts to bring about self-determination
for oppressed ethnic minorities.

The
PKK advocates a Kurdish homeland in southeastern Turkey.
The Tamil Tigers say their people are oppressed by the Sinhalese majority in Sri
Lanka and want an independent
Tamil state in northern and Tamil Eelam, the area of northern and eastern Sri
Lanka where most Tamils live.

The
State Department, while denouncing the armed resistance to the Turkish and Sri
Lankan governments, acknowledges that the Kurds and Tamils have been the
victims of systematic human rights violations by those regimes.

Plaintiffs
in the action include the Humanitarian Law Project headed by retired federal
Administrative Law Judge Ralph Fertig of Los
Angeles. The HLP has denounced Turkey’s
treatment of the Kurds before the United Nations’ Human Rights Commission and
congressional committees, and complains that its peaceful activities in support
of the Kurds could be construed as providing material support to the PKK under
AEDPA.

Judge
Harry Pregerson, writing last year for the three-judge panel, agreed. Pregerson
wrote that because Congress included the term “knowingly” in the law, the
government must prove defendants knew the group is a designated terrorist
organization, or knew of the activities that led to the designation.

The
alternative interpretation urged by the government, that it is sufficient that
the defendant knew that the support or services were going to the particular
organization, would render the law constitutionally dubious, Pregerson said.

Under
that view, the judge explained, “a woman who buys cookies from a bake sale
outside of her grocery store to support Kurdish refugees to find new homes
could be held liable, so long as the bake sale had a sign that said that the
sale was sponsored by the PKK.”

Similarly,
the judge wrote, an American who sends a check to a school or orphanage run by
the Tamil Tigers could be prosecuted even if he or she did not know that the
group had been designated as terrorist or had engaged in terrorist acts.

Pregerson
cited cases striking down loyalty oaths and other McCarthy-era enactments,
including laws barring Communist Party members from obtaining passports or
being officers of labor unions.

Rawlinson
argued that the challenged section of AEDPA differs from the laws cited by
Pregerson in that it applies only after the group has been proven to engage in
terrorism and does not punish all members of an organization, only those who
provide one with material support.

While
“the subversive activities attributed to the” Communist Party and related
organizations targeted by the McCarthy-era laws “were more theoretical than
real,” the judge added, the PKK and Tamil Tigers are “real-life terrorist
organizations that have engaged in all-too-real terrorist sorties resulting in
widespread death and destruction.”